Intermediary Liability

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Whether and when communications platforms like Google, Twitter and Facebook are liable for their users’ online activities is one of the key factors that affects innovation and free speech. Most creative expression today takes place over communications networks owned by private companies. Governments around the world increasingly press intermediaries to block their users’ undesirable online content in order to suppress dissent, hate speech, privacy violations and the like. One form of pressure is to make communications intermediaries legally responsible for what their users do and say. Liability regimes that put platform companies at legal risk for users’ online activity are a form of censorship-by-proxy, and thereby imperil both free expression and innovation, even as governments seek to resolve very real policy problems.

In the United States, the core doctrines of section 230 of the Communications Decency Act and section 512 of the Digital Millennium Copyright Act have allowed these online intermediary platforms user generated content to flourish. But, immunities and safe harbors for intermediaries are under threat in the U.S. and globally as governments seek to deputize intermediaries to assist in law enforcement.

To contribute to this important policy debate, CIS studies international approaches to intermediary obligations concerning users’ copyright infringement, defamation, hate speech or other vicarious liabilities, immunities, or safe harbors; publishes a repository of information on international liability regimes and works with global platforms and free expression groups to advocate for policies that will protect innovation, freedom of expression, privacy and other user rights.

Joan Barata is an international expert in freedom of expression, freedom of information and media regulation. As a scholar, he has spoken and done extensive research in these areas, working and collaborating with various universities and academic centers, from Asia to Africa and America, authoring papers, articles and books, and addressing specialized Parliament committees.

Annemarie Bridy is a Professor of Law at the University of Idaho. She is also an Affiliated Fellow at the Yale Law School Information Society Project and a former Visiting Associate Research Scholar at the Princeton University Center for Information Technology Policy. Professor Bridy specializes in intellectual property and information law, with specific attention to the impact of new technologies on existing legal frameworks for the protection of intellectual property and the enforcement of intellectual property rights.

Giancarlo F. Frosio is a Non-Residential Fellow at the Center for Internet and Society at Stanford Law School. Previously he was the Intermediary Liabilty fellow with Stanford CIS. He is also a Senior Lecturer and Researcher at the Center for International Intellectual Property Studies (CEIPI) at Strasbourg University. Giancarlo also serves as Affiliate Faculty at Harvard CopyrightX and Faculty Associate of the Nexa Research Center for Internet and Society in Turin.

David G. Post, reviewing what the original Law and Borders paper got right (and what it got wrong), noted that the central dilemma it had identified—the conflict between an a-territorial global network and an international legal system with territoriality at its core—had certainly proved to be a profoundly challenging one. He suggested that the failure (thus far) to make much headway on these problems of “governance on the Internet” (in Bertrand de la Chapelle’s phrase) may be pushing these problems “upward,” to the institutions (e.g., ICANN) concerned with “governance of the Internet,” as they face increasing pressure to leverage their control over critical infrastructure to exercise greater control over online content and conduct.

The essay below serves as introduction to the Stanford Center for Internet and Society's Law, Borders, and Speech Conference Proceedings Volume. The conference brought together experts from around the world to discuss conflicting national laws governing online speech -- and how courts, Internet platforms, and public interest advocates should respond to increasing demands for these laws to be enforced on the global Internet.

The Law, Borders, and Speech conference at Stanford’s Center for Internet and Society asked the important question: Which countries’ laws and values will govern Internet users’ online behavior, including their free expression rights? The conference used the landmark article written in 1996 by David G. Post and David R. Johnson to examine whether twenty years on their conclusions still held true. Post and Johnson had concluded that “[t]he rise of the global computer network is destroying the link between geographical location and: (1) the power of local governments to assert control over online behavior; (2) the effects of online behavior on individuals or things; (3) the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules apply.” They proposed that national law must be reconciled with self-regulatory processes emerging from the network itself.

Reconciling Copyright with Cumulative Creativity: The Third Paradigm examines the long history of creativity, from cave art to digital remix, in order to demonstrate a consistent disparity between the traditional cumulative mechanics of creativity and modern copyright policies.

On Tuesday, in a courtroom in Luxembourg, the Court of Justice of the European Union is to consider whether Google must enforce the “right to be forgotten” — which requires search engines to erase search results based on European law — everywhere in the world.

On Thursday, Sept. 6, Twitter permanently banned the right-wing provocateur Alex Jones and his conspiracy theorist website Infowars from its platform. This was something of the final blow to Jones’s online presence: Facebook, Apple and Youtube, among others, blocked Jones from using their services in early August. Cut off from Twitter as well, he is now severely limited in his ability to spread his conspiracy theories to a mainstream audience.

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"People would be allowed to use pseudonyms when posting online, but platforms could be forced to hand out the users’ private information to third parties, including private persons, seeking prosecution for defamation or other crimes.

“The chilling effect for freedom of speech is real,” said Thomas Lohninger."

"“What’s not so clear yet is whether G.D.P.R. has had an effect on privacy and on corporate data practices,” said Omer Tene, vice president and chief knowledge officer at the International Association of Privacy Professionals. “Has the underlying business model of the internet changed? Is consumer privacy better? I think those questions are very much still open.”"

"“If you want to be more skeptical, the question is does all this activity actually deliver more privacy?” said Omer Tene, Vice President at the International Association of Privacy Professionals, an industry trade body. “Ostensibly the goal isn’t just to mobilize compliance and regulatory efforts, complaints, and notifications but to actually result in better privacy for individuals on the ground. I think the jury is still out on that. It’s not clear at year end that corporate data practices are different or have changed.”"

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Interested in working in public interest technology law and policy? Want to find out what you can do now to build a career in this growing area? Join the Stanford Center for Internet and Society and the Levin Center to discuss the broad range of available options and how to identify and evaluate prospective employers, plus how to make the most of your time at SLS to position yourself for the future.

Internet platforms like Facebook and Twitter play an ever-increasing role in our lives, and mediate our personal and public communications. What laws govern their choices about our speech? Come discuss the law of platforms and online free expression with CIS Intermediary Liability Director Daphne Keller.

Please join the Honorable BN Srikrishna, Chairman of the Group of Experts on Data Protection in India & former Justice of the Supreme Court of India, as he discusses the drafting of India's first ever data protection framework, submitted to the Indian government on July 27, 2018.

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The question of what responsibility should lie with Internet platforms for the content they host that is posted by their users has been the subject of debate around in the world as politicians, regulators, and the broader public seek to navigate policy choices to combat harmful speech that have implications for freedom of expression, online harms, competition, and innovation.

The latest in the EU's string of internet regulatory efforts has a new target: terrorist propaganda. Just as with past regulations, the proposed rules seem onerous and insane, creating huge liability for internet platforms that fail to do the impossible.

Cybersecurity is increasingly a major concern of modern life, coloring everything from the way we vote to the way we drive to the way our health care records are stored. Yet online security is beset by threats from nation-states and terrorists and organized crime, and our favorite social media sites are drowning in conspiracy theories and disinformation. How do we reset the internet and reestablish control over our own information and digital society?